SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  I agree that the application for leave to appeal by Paul Johansson should be dismissed for the reasons given by Atkinson J.

2. As to the application by Jennifer McLachlan for leave to appeal, I agree with the reasons of Chesterman J. My impression that offences of possessing and supplying heroin in excess of 2 grams in quantity ordinarily attract a sentence of imprisonment ranging from about 12 months to three years is supported by the decision of this Court in R v Denniss (CA 339 of 1995), where Lee J referred to a number of earlier decisions; and also by the other cases mentioned by Chesterman J in his reasons here.

3. In this instance, it goes slightly in favour of the applicant that she does not seem to have taken much active part herself in the activity of selling or supplying the heroin. Indeed, the extent of her personal participation is perhaps a little uncertain. A woman known as a drug addict was seen entering and later leaving a car driven by Mr Johansson.  A key found in the car led the police to a motel room in which the applicant was found asleep.  A search of the room unearthed two clipseal bags each containing 36 smaller bags of powder weighing in total 3.709 grams, of which 76% or 2.825 grams were pure heroin.  It was the residue of a larger quantity of 108 bags, some of which had been used and some sold by the applicants.

4. It was not contested that both applicants, who were a family unit, were supplying heroin to feed their own addiction. Mr Johansson had been doing so on the Gold Coast for about two months.  Ms McLachlan said she had arrived there about a month before him and had supplied heroin to a “number of people” in order to supplement her habit.  She also admitted to having assisted him to a limited extent by writing down some amounts and helping him with packaging.  The writing down consisted, or so the Crown Prosecutor said at the hearing, of “doing some calculations for moneys to be made from sales”.  In the end, however, her plea was accepted by the prosecution “on the basis that she assisted Mr Johansson with just packing”.  Her criminal responsibility for his actions evidently rested on s 7 of the Code.  She has a series of convictions for minor offences of dishonesty, none of which post-date 1989, recorded in New South Wales.  She has been an addict since the age of 20, but is now undergoing treatment and is presently free from signs of heroin use.  She is said to be a caring mother of her 10 year old son.

5. The head sentence of two years was within the conventional range of penalties imposed in cases of this kind. It is plain from the reasons of the learned sentencing Judge that he took account of all the personal factors in her favour. Having done so, he suspended the sentence after six months. It cannot be said that the sentence was unduly harsh or that his Honour’s discretion miscarried in any discernible respect. That being so, the application for leave to appeal must be dismissed.

6. CHESTERMAN J:  I agree with Atkinson J that the application for leave to appeal by Mr Johansson should be refused.

7. In my opinion the application for leave to appeal by Ms McLachlan should also be refused.  I would not myself describe that applicant’s role in the drug dealing in which she and Mr Johansson engaged as a “very minor one”.  By her own confession she supplied heroin on two occasions and was in possession of 36 packets of the drug for the purpose of supplying them, or assisting Mr Johansson to supply them, for her personal gain as well as his.  She kept a record of their illicit transactions.  It may be accepted that her participation in their joint criminal activity was substantially less than Mr Johansson’s, that her criminal history was insignificant and that her prospects of rehabilitation were good.

8. These circumstances do not, in my opinion, cast any doubt upon the correctness of the sentence imposed on her, that of two years imprisonment to be suspended after serving six months. The error which is said to vitiate the sentencing discretion is that the very experienced sentencing judge was mislead by the prosecutor’s submission that the appropriate range of available sentences was a term of imprisonment for a period of between three and four years. It is difficult to see how his Honour could have been misled by the submission when the sentence imposed was outside the submitted range. There are, in any event, a number of cases which indicates that the sentence imposed on Ms McLachlan was within the appropriate range and was, if anything, lenient thereby recognising the applicant’s relatively good record and her prospects of rehabilitation.

9. In R v Denniss (unreported CA 585 of 1995, 26 October 1995) the applicant, a 38 year old man with a significant criminal history, was convicted on six counts of supplying heroin.  The amount was very small, .356 grams of pure heroin.  Denniss was an addict who received no monetary benefit from the sales.  He was sentenced to twelve months imprisonment with a recommendation for parole after serving four months.

In R v Izatt (unreported, CA 290 of 1999, 28 July 1999) the applicant was convicted of three counts of supplying heroin.  He had a serious criminal history and had committed the offences within a week of commencing home detention upon his release from prison for a lengthy term of imprisonment for drug trafficking.  He was sentenced to two years imprisonment cumulative upon serving the terms for which he was recommitted to prison.

Tran (unreported, CA 330 of 1998, 16 September 1998) was a 21 year old man with bright prospects for an education and career.  He supplied 3.149 grams of pure heroin under pressure to obtain repayment of the debt owed by his co-offender.  He had no criminal history.  He was sentenced to six months imprisonment.

Hauser (unreported, CA 345 of 1999, 20 August 1999) was sentenced to one year imprisonment cumulative on other sentences with a recommendation for parole after serving six months for one count of supplying heroin.  He was 22 years of age with an extensive criminal history but with a number of personal mitigating circumstances.  He had been bullied into supplying heroin to another man who died as a result of ingesting the drug.  On appeal the requirement that the sentence be served cumulatively was removed.

In Yatras (unreported, CA 180 of 1991, 6 September 1991) the applicant supplied .095 grams of heroin for $200.  He had a very substantial criminal history.  He was sentenced to three years imprisonment with a recommendation for parole after nine months.

Trotter (unreported, CA 475 of 1993, 3 November 1993) was sentenced to three years imprisonment when convicted of five counts of supplying heroin.  On appeal a recommendation that he be eligible for parole after serving twelve months was added to the sentence.  Trotter was 47 with convictions for drug offences.

Watson (unreported, CA 105 of 1991, 28 May 1991) was sentenced to three years imprisonment on one count of supplying heroin.  He was 29 with a poor criminal history but with an addiction to heroin.  The amount supplied was .118 grams.

In R v Phillips (unreported, CA 427 of 1993, 25 October 1993) the applicant was punished by a term of three years imprisonment with a recommendation for parole after six months on one count of supplying .419 grams of heroin.  The sale was to finance drugs for his own use.  He was an addict without a criminal history.

10. The sentences imposed in these cases cover a span of six months to three years, with recommendations for parole after serving between four and nine months being quite common.

11. In my opinion the application by Ms McLachlan for leave to appeal against sentence should be refused.

12. ATKINSON J:  Paul Johansson was convicted on his own plea of guilty on one count of trafficking in the dangerous drug heroin between 8 September and 10 November 1999.  On 25 May 2001, he was sentenced to a term of imprisonment of seven years with a recommendation for release on parole after serving two and a half years of that sentence.^[1]  He was also sentenced to a term of imprisonment of six months to be served concurrently for a breach of probation.

13. Jennifer McLachlan was convicted on her own plea of guilty on two counts of supplying a dangerous drug and one count of possession of a dangerous drug with a circumstance of aggravation. The drug involved was heroin and the circumstance of aggravation was that the amount was over two grams. She was sentenced on 25 May 2001 to two years imprisonment suspended after six months with an operational period of three years.

14. Mr Johansson was the more serious offender. On 9 November 1999, police officers saw a known drug user enter and leave the vehicle driven by Mr Johansson.  He told the police that he had supplied this person with heroin.  With his agreement the police searched his car but found nothing.  They noticed however that he was trying to hide a motel key from them.  Mr Johansson then took them to the motel room, which he was sharing with Ms McLachlan, who was his girlfriend.  She was there asleep.  The police searched the motel room and Mr Johansson directed them to a make up bag belonging to Ms McLachlan which contained two clip seal bags.  Each bag contained 36 smaller bags so that there were 72 bags in all which contained a total of 3.709 of powder.  Of that, 2.825 grams was pure heroin; so the purity of the heroin was 76 percent.  The police also found a notebook with entries for amounts of money and two small squares of paper containing traces of heroin.  The police also found four squares of aluminium foil on a bench top in the motel room.  The foil was burnt and Ms McLachlan said she used this to smoke heroin.  The police also found a rolled up tube of cardboard and a knife with traces of heroin on the blade.

15. Both Mr Johannson and Ms McLachlan voluntarily gave records of interview to the police making full admissions.  Mr Johannson told the police that he had been selling heroin for the past two months to various customers on the Gold Coast.  His last purchase had been of 108 packets of heroin two days before the police search, which he had purchased for $30 a packet and intended to sell for $40.  It appears that the heroin was therefore pre-packaged in the small bags in which it was found.  He told the police that he was selling the heroin because of his own addiction.  Of the 108 packets he had purchased he had sold 15 packets and the remaining 21 had been consumed by Ms McLachlan and himself.

16. Ms McLachlan arrived on the Gold Coast a month before Mr Johannson.  She was sentenced on the basis that she helped Mr Johannson to a limited extent by writing down some amounts and helping him with some packaging.  She was a heroin addict who received drugs in return for her assistance.  She did not engage in the supply of drugs separately.  Her role was merely as a party to the supply by her co-accused in the limited way mentioned.

17. Mr Johannson was 45 at the time he committed the offences, having been born on 12 January 1954.  He had a serious criminal record for persistent offending with convictions for dishonesty, drunken driving, violent offences and drug offences.

18. His criminal record commenced in 1971 in New South Wales where he received convictions in children’s courts for stealing. He was committed to an institution for nine months on the second of those charges. In 1975, he was first convicted for a drug offence being fined $400 for use of the prohibited drug, heroin. In 1976, he was convicted of stealing from a dwelling and using heroin and sentenced to probation for three years with drug treatment as a condition. The following year, in 1977, he breached his recognisance when he was convicted of supplying a drug of addiction. In 1978, he was convicted of assault, robbery and robbery while armed. He was sentenced to periodic imprisonment. The following year, in 1979, he was convicted of use of heroin, possession of Mandrax, break enter and steal and stealing. He was sentenced to various terms of imprisonment.

19. In 1981, he was convicted of receiving. In 1982, he was convicted of break, enter and steal, false pretences and accessory before the fact. Later in 1982, he had many convictions for false pretences and forgery, two convictions for break, enter and steal, one for stealing and one for accessory before the fact. He was sentenced to two years imprisonment.

20. After his release from imprisonment he moved to Queensland and in April 1986, was convicted on ten charges of stealing between 5 August 1985 and 8 January 1986.  He was sentenced to six months imprisonment and ordered to pay restitution.  In May 1986, he was convicted on three charges of false pretences between 17 January and 11 February 1986 and was sentenced to two months imprisonment to be served concurrently with the previous sentence.

21. In March 1987, he was convicted of driving a motor vehicle with a blood alcohol content of 0.13 percent.  Later in the same year he was convicted in the Southport Magistrates Court of possession of dangerous drugs and failing to dispose of a hypodermic syringe used in connection with the administration of dangerous drugs.  He was convicted and fined.  On 12 June  1998, he was convicted of unauthorised dealing with shop goods.

22. On 22 September 1998, Mr Johannson was convicted in the Southport District Court of bringing stolen goods into Queensland and false pretences on 18 November 1996, of receiving on a date unknown between 20 August 1997 and 26 August 1997, and fraud on 25 August 1997.  On each charge, a conviction was recorded and he was sentenced to imprisonment of three months followed by probation for two years.  It was a special condition of the probation that he undergo such counselling and treatment for his drug problem as may be directed.  As with most of his previous criminal record, these convictions were for drug-related crime.  This was the probation order of which he was in breach when he committed the offence of trafficking dangerous drugs for which he received the sentence on which he appeals.

23. A court report dated 25 May 2001 shows him to be positive and co-operative, free from drugs and motivated.  It stated that he had regular professional contact with Reverend John Tully to deal with his heroin addiction.  However it should be noted that his rehabilitation did not follow immediately upon his arrest.  This is shown by the fact that after he committed the trafficking offence, he was convicted on 5 April 2000 in Tweed Heads for possessing a prohibited drug, supplying a prohibited drug and having goods in his personal custody reasonably suspected of being stolen.  He was sentenced to a period of imprisonment of 12 months, which was wholly suspended.  Mr Johannson has been a heroin addict for a very long time, since the age of 20.  This no doubt explains his extensive and serious criminal history.

24. Mr Johannson has, however, a number of factors which weigh in his favour.  He volunteered information to the police, which enabled them to lay the trafficking charge, and made full admissions.  He had been receiving support and advice from a counsellor and had tested negative for drugs regularly from June 2000.  A report by psychologist, Dr Sue McCullouch, on 10 May 2001, described him as co-operative, open and polite but lacking in self-confidence or insight.  She reported that he needed, “ongoing, serious, and adequate, intensive therapy to address his illicit substance abuse and maintain his reportedly drug free existence.”  He had recently undertaken part time work as a delivery driver and had success in a small business with his de facto partner.

25. Before the sentencing judge the defence submitted that the range was six to seven years imprisonment, with a recommendation for parole after serving two years, whereas the Crown submitted that the appropriate sentence was seven to nine years. The sentencing judge considered all relevant matters and the sentence which he imposed, of seven years imprisonment with a recommendation for release on parole after two and a half years, is consistent with comparable cases such as R v Le,^[2] R v Pascoe^[3] and R v Watt.^[4]

26. In R v Le, the applicant was convicted of trafficking in heroin over a three month period, with sales bringing in less than $3000 gross per month and only a small amount of profit.  The applicant had no previous convictions related to dealing in heroin, pleaded guilty, and it was clear that the main purpose of dealing was to fund his own habit.  He received an eight-year sentence for 16 drug offences with no parole recommendation.  Thomas J commented that trafficking activity for sheer profit is viewed more seriously than trafficking by an addict in the grip of an addiction.^[5]  However, it was held that this sentence, whilst at the high end of the appropriate range for the circumstances, could not be classified as manifestly excessive.

27. In R v Pascoe, the applicant was convicted of five counts of supplying heroin, one count of unlawful possession of a motor vehicle, one count of trafficking in heroin over a one and a half month period, one count of supplying cannabis and one count of supplying heroin.  He was sentenced on all counts to eight years imprisonment.  The Court of Appeal commented that the sentence imposed was not a light one, but some of the offences were committed whilst on bail for the trafficking and supply offences.  He was a 31 year old heroin user who engaged in these transactions to feed his habit.  His criminal history went back to 1981 and included some drug and dishonesty offences.  It was held that the sentence was within range for the offence of trafficking in heroin.  Apart from the plea of guilty, there was no basis for considering a recommendation for parole and the plea was catered for in his sentence.

28. In R v Watt, the applicant carried on trafficking in heroin over a six-month period comprising 12 sales to an undercover police officer.  He also committed associated offences of supply and possession of heroin and cannabis.  The sentence imposed was seven years imprisonment with a parole consideration recommended after two years and four months.  The applicant was 40 years at the time of the offences and had many past convictions for drug offences dating back to when he was 24 years old.  This sentence was not interfered with.

29. Mr Johannson’s application for leave to appeal against sentence should be refused.

30. Ms McLachlan, who was sentenced at the same time for the associated offences, had a very different history from Mr Johannson.  She was born on 6 January 1967 and was therefore 32 years old at the time of the offences.  She had no criminal convictions since 1989.  In the late 1980s she had three minor convictions for imposition, public mischief, and stealing for which she had been fined.  Her role in these offences was only a very minor one assisting Mr Johannson.

31. Ms McLachlan’s involvement was directly related to the fact that she was an addict who became involved in a relationship with Mr Johannson.  Prior to meeting him she had worked to support her habit, which can be seen both from her lack of a criminal history and from her steady work habits.  In addition she has a ten-year-old son who has no one else available to look after him apart from his mother.  After her arrest on these matters she attended drug counselling and has been drug free as shown by random testing since June 2000.  She was a heroin addict from the age of 21 but has managed to detoxify herself both from heroin and from the methadone program.  Dr McCullouch, the psychologist who reported on her to the court, was very optimistic about Ms McLachlan’s prospects of rehabilitation.  Dr McCullouch concluded:

“In sum I am of the view that Ms McLachlan requires therapeutic intervention so as to develop and “shore up” a lifestyle and perspective of life which satisfies herself in the community.  In effecting a serious, radical change in her new life perspective she will have resolved the underlying motivations to indulge in the use of illicit drugs (and therefore develop an addiction) and so would be unlikely to re-offend.”

32. Before the sentencing judge the prosecution submitted that the appropriate sentence was a period of three to four years relying on the authority of R v Williams^[6] and R v Ross.^[7]  The defence sought a two-year sentence wholly suspended or an intensive correction order.  This submission is more consistent with the comparable cases than that put forward by the prosecution.

33. On appeal the prosecution submitted that the appropriate range in such a case was 18 months to three years imprisonment but were unable to cite any cases to support that view. The only case on which the prosecution relied in the Court of Appeal was R v Williams.^[8]  The more comparable sentence in that case was of the applicant’s de facto wife who had pleaded guilty to two counts of supplying heroin jointly with the applicant.  She was sentenced to three years imprisonment wholly suspended for a period of four years.  The circumstances of her offending were that she assisted her de facto husband.  He was approached by an undercover police officer and asked to obtain some heroin.  He indicated that he could readily obtain what was needed.  On later occasions he indicated to the undercover officer that it was cheaper to get heroin from Sydney.  This was done and on several occasions his de facto wife went in his place because he became air sick when flying.  That was the extent of her participation in the supplies.  There was no appeal against her sentence.  Like Ms McLachlan, in this case, she was drug free at the time of sentencing and had been for some time prior to that date.

34. The purpose of sentencing as set out in s 9(1) of the Penalties and Sentencing Act 1992 (Qld) is to punish, to provide conditions to help the offender to be rehabilitated, to deter the offender and other persons from committing the same or a similar offence, to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved and to protect the Queensland community.  The combination of these factors which is appropriate depends on the requirements of the particular case.  The court is required to have regard to the principles that a sentence of imprisonment should only be imposed as a last resort and a sentence which allows an offender to stay in the community is preferable.

35. The need for the community to see Ms McLachlan appropriately punished and others deterred and the public advantage of maintaining her rehabilitation would be achieved in my view by a sentence of imprisonment to be imposed by way of intensive correction order.^[9]  The case is not one where it is appropriate for the applicant to be released unsupervised in the community on a suspended sentence if she is to successfully maintain her rehabilitation.^[10]  Supervision is particularly significant in the case of an offender whose offending behaviour has been driven by drug addiction.^[11]

36. But the view of this court that another sentence would have been preferable or more appropriate is not sufficient to allow the court to substitute a new sentence for that given by the judge at first instance. The appeal cannot succeed unless some identifiable error in the sentencing discretion can be shown. The court does not substitute its own view for that of the sentencing judge from whom the appeal is brought.^[12]

37. The error in this case arose because the learned sentencing judge was misled by the prosecutor as to the sentencing range. There is no case which establishes that a custodial sentence of three to four years is the appropriate sentencing range for an offender with no relevant previous criminal history, who played a very minor role, who was addicted at the time of the offences, who received no monetary benefit, who had overcome her heroin habit by the time of sentencing as demonstrated by repeated urine analysis over a period of many months, who had a good work history and had sole responsibility for a ten year old child who would have nowhere to live if his mother were put into custody. A number of sentences have been referred to by Chesterman J as establishing an appropriate sentencing range in such a case. None of them, however, has the distinguishing characteristics of this case particularly that the offender had no face-to-face role in the supply of drugs but merely provided limited assistance to another who was the principal offender. This factor alone suggests a sentence less than those imposed in those cases should have been imposed.

38. In R v Denniss,^[13] for example, the offender not only was the principal offender but also, unlike Ms McLachlan, had a significant criminal history and was sentenced to six counts of supply.  All of the cases referred to concern more serious offending^[14] or offences committed while subject to other court orders^[15] or sentencing of offenders with serious relevant criminal histories.^[16]  Other cases demonstrate the same relevant differences from Ms McLachlan’s circumstances.^[17]

39. Ms McLachlan’s circumstances clearly give rise to a consideration of the principles that imprisonment is a sentence of last resort and a sentence which allows an offender to stay in the community is preferable.  In those circumstances, the sentence imposed can be seen to be manifestly excessive.

40. A more appropriate sentence would have been 12 months imprisonment to be served by way of intensive correction order in the community pursuant to ss 112 and 113 of the Penalties and Sentences Act 1992 (Qld).^[18]  An intensive corrections order is intrusive and coercive but places a strong emphasis on rehabilitation and so is a suitable order for drug offenders who are motivated to cease their offending but need intensive assistance with rehabilitation.  The punitive nature of the order is recognised by the requirement to undertake 12 hours community service a week as well as being visited by a community corrections officer at lease twice a week and undertaking counselling and programmes as directed, together with the punishment likely to follow a breach.

41. The appellant has now however served almost four months in prison. The appropriate order is that the applicant should be granted leave to appeal against sentence and the appeal should be allowed. She should be released from custody immediately and ordered to serve a further period of six months imprisonment by way of intensive correction order.